Citation Nr: 0821027
Decision Date: 06/26/08 Archive Date: 06/30/08
DOCKET NO. 03-08 063 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
ISSUES
1. Entitlement to service connection for diabetes mellitus.
2. Entitlement to service connection for depression.
3. Entitlement to service connection for a right wrist/arm
disability.
4. Entitlement to an initial compensable evaluation for
floppy mitral valve syndrome.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran (appellant)
ATTORNEY FOR THE BOARD
P. Childers, Associate Counsel
INTRODUCTION
The veteran had active military service from December 1969 to
April 1975.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued in September
2002 and February 2003 by the Department of Veterans Affairs
(VA) Regional Office (RO) in Nashville, Tennessee. The
September 2002 decision denied, in pertinent part, service
connection for a right arm impairment and depression, and the
veteran's request to reopen previously denied claims for
service connection for a left knee disorder and floppy mitral
valve syndrome. The February 2003 decision denied service
connection for diabetes mellitus type II.
In a December 2005 decision the Board denied the veteran's
claims for service connection for diabetes mellitus, a right
arm impairment, and depression, and denied the veteran's
request to reopen a previously denied claim for service
connection for a left knee disability. In that same decision
the Board reopened the veteran's claim for service connection
for floppy mitral valve syndrome, and then remanded the issue
of service connection for floppy mitral valve syndrome for
further development.
In January 2006 the veteran appealed all but that part of the
Board's decision concerning a floppy mitral valve disorder to
the Court of Appeals for Veterans' Claims (Court). In
September 2007 the Court issued a decision affirming the
Board's denial of the veteran's request to reopen his
previously denied claim for service connection for a left
knee disability, and remanded the issues of service
connection for diabetes mellitus, a right arm impairment, and
depression for further development.
In December 2007 the RO granted the veteran's claim for
service connection for floppy mitral valve syndrome effective
October 16, 2000. A noncompensable rating was assigned. In
March 2008 the veteran filed a Notice of disagreement with
regard to the assigned noncompensable rating.
The Board notes that in his October 2006 brief to the Court
of Appeals for Veterans' Claims the veteran argued with
regard to the issue of post-traumatic stress disorder (PTSD).
This issue, which has not been adjudicated, is referred back
to the RO for clarification as to whether the veteran seeks
to file a claim for service connection for PTSD.
The issues of entitlement to an initial compensable rating
for a floppy mitral valve syndrome disability; entitlement to
service connection for a right wrist/arm disability; and
entitlement to service connection for diabetes mellitus type
II are addressed in the REMAND portion of the decision below.
FINDING OF FACT
The record contains credible evidence of symptomatology
during and after service that has since been diagnosed as
depression and linked by competent probative evidence to
service.
CONCLUSION OF LAW
An acquired psychiatric disability was incurred during active
military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran seeks service connection for depression. He
contends that this disorder began in or around 1973
concomitant with seizures and blackouts that he was
experiencing. He says that he was given Valium while in-
service.
Service treatment records (STRs) contain no prima facie
evidence of any complaints of or treatment for depression,
and there is no documentation of a psychiatric disorder at
the time of the veteran's entry into active military service,
but treatment notes dated in October 1972 contain the
following remarks:
Cramps, epig pains x 3 wks interm. Assoc.
[with] nervousness.
Treatment notes dated April 4, 1973, inform of a 15 pound
weight loss over five months with "many assoc. sympt."
Treatment notes dated April 12, 1973, advise that the veteran
had not been eating adequate amounts of food and no full
meals. A private hospital record dated in October 1974
advises of minimal drug intake with "occasional use of
Valium." In addition, the Board notes the veteran's report,
during his March 1975 separation examination, of a suicide
attempt, and physician comments on the March 1975 separation
examination report, which advise as follows:
July 1, 1973 took overdose of Sominex
when off duty. Vomited but not
hospitalized and no medical attention
sought.
Based on the above evidence from STRs the Board finds the
veteran's allegations of psychiatric symptomatology during
service to be credible. 38 C.F.R. § 3.102; see also Barr v.
Nicholson, 21 Vet. App. 303 (2007).
VA psychiatric treatment records dated in May 2002 advise of
a history of depression "since his early 20's." According
to VA treatment providers, the vet "was first treated in
1972 for depression and has had frequent episodes of what
sounds like both major depression and also what sounds like
dysthymia in between times, with low mood, either too much or
too little sleep, lack of interest, lack of energy, poor
concentration, poor appetite at times, suicidal ideation at
times, there are no Suicide attempts, and low libido at
times."
In May 2004 the veteran was accorded a compensation and
pension (C&P) examination with regard to his claim for
service connection for depression. The examiner advised that
the claims file was reviewed pursuant to the examination.
According to the examiner,
Based on the findings of single
examination, a review of his medical
records and claims file, and the criteria
in Diagnostic and Statistical Manual of
the American Psychiatric Association-IV,
it does appear this patient has current
psychiatric diagnoses of major depressive
disorder, recurrent, severe, and alcohol
dependence, in remission. . . . It does
appear that his depression according to
the patient did begin while he was in the
service after his blackouts became more
chronic and began to have a significant
impact on his life; therefore this
depressive disorder would be considered
to be service-connected.
The Board finds this to be a well supported, well
rationalized opinion that is entitled to great probative
value.
In sum, the record contains credible evidence of
symptomatology during service. The record also contains
competent probative evidence of continuity of symptomatology
thereafter. In addition, a C&P examiner has opined that the
veteran's current depression disorder is related to active
military service, and the record contains no competent
probative evidence to the contrary. Based on all of the
evidence of record the Board finds that a grant of service
connection for depression is warranted. 38 C.F.R. § 3.303.
This decision represents a complete grant of the benefit
sought on appeal. Thus no discussion of VA's duty to notify
and assist is necessary.
ORDER
Service connection for depression is granted.
REMAND
In a rating decision dated in December 2007 the RO granted
service connection for a floppy mitral valve syndrome
disability with an evaluation of 0 percent effective October
16, 2000. In correspondence received by the Board in March
2008 the veteran stated his disagreement with the
noncompensable rating that was assigned. He specifically
stated that he felt that the highest rating of 100 percent
was warranted for his service-connected heart condition.
VA regulations provides that where a notice of disagreement
has been filed with regard to an issue, and a statement of
the case has not been issued, the appropriate Board action is
to remand the issue to the RO for issuance of a statement of
the case. See Manlicon v. West, 12 Vet. App. 238 (1999).
Since the veteran has timely filed a notice of disagreement
with regard to the issue of an increased rating for his
service-connected heart condition the matter must be remanded
for compliance with 38 CFR § 19.26.
The veteran also seeks service connection for diabetes
mellitus type II. STRs contain no mention of any diagnosis
of or treatment for diabetes, borderline diabetes, or
elevated blood sugar, but the evidence confirms a current
diagnosis of diabetes mellitus type II. The evidence also
includes a letter from a private treating physician who avers
as follows:
[The veteran] has voiced concern about
development of his diabetes, stating that
while in the military service, he was
told that he had borderline diabetes or
mildly elevated glucose levels on routine
laboratory work. [The veteran] states
that he was never officially diagnosed
with diabetes but his concern is the
"borderline blood sugar levels were a
previous indication that he would develop
diabetes". Although there was possibly
some tendencies, I cannot conclusively
tie this report to his diagnosis of
diabetes mellitus at this point. I have
not reviewed his records from the
Veterans Administration from which [the
veteran] is speaking. Thus, the
speculation of the "diabetic
tendencies" must be concluded by the
Veterans Administration.
The record confirms a current diagnosis of diabetes mellitus,
and includes conjecture from a private treating physician as
to a nexus to service. However, as the physician himself
cautioned, his opinion is not supported by review of VA
records. It is therefore of little probative value. See
Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that
the duty to assist includes "the conduct of a thorough and
contemporaneous medical examination, one which takes into
account the records of prior medical treatment, so that the
evaluation of the claimed disability will be a fully informed
one"); see also Caffrey v. Brown, 6 Vet.App. 377, 381 (1994)
(holding that the examiner "must consider the records of
prior medical examinations and treatment in order to assure a
fully informed examination"). Nevertheless, inasmuch as the
private opinion does suggest that the veteran's diabetes may
be associated with the veteran's service, and in view of the
"low threshold" requirement set out in McLendon, the Board
finds that the veteran should be accorded a C&P examination.
See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding
that the Secretary must provide a VA medical examination when
there is (1) competent evidence of a current disability or
persistent or recurrent symptoms of a disability, (2)
evidence establishing that an event, injury, or disease
occurred in service, or establishing certain diseases
manifesting during an applicable presumptive period for which
the claimant qualifies, and (3) an indication that the
disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service or
with another service-connected disability, but (4) there is
insufficient competent medical evidence on file for the
Secretary to make a decision on the claim. The third prong,
which requires that the evidence of record "indicate" that
the claimed disability or symptoms "may be" associated with
the established event, is a low threshold.); see also 38
U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i).
With regard to the veteran's claim for service connection for
a right wrist/arm disorder, STRs dated in May 1971 contains
the following remarks:
Stab wound [right] wrist. Irrigated.
Extends to bone through muscle. 13
sutures placed in skin & [illegible].
STRs dated in December 1971 also show treatment for a
puncture wound to the right wrist. In addition, comments on
the report of a March 1975 separation examination inform that
the right upper extremity was "put in cast to just below the
elbow" in 1971.
Examination done for Social Security disability purposes in
July 1994 found hypertrophy of the right wrist in the second
and third metacarpophalangeal joints. Diagnosis was
degenerative joint disease of the right hand and wrist.
Treatment records dated in May 1995 advise of a "long
surgical scar on the distal radial head of the [right] arm
and also on the volar aspect of the right hand." The
physician adds that the veteran apparently underwent right
arm open reduction internal fixation surgery in 1980. A C&P
foot examination done in March 2000 noted a "10.5
centimeters scar on the ventral aspect of the right arm from
the wrist to the forearm . . . where surgery was done in 1979
to remove a ganglion cyst."
The evidence confirms that the veteran sustained trauma to
his right wrist during service. The evidence also confirms
that the right arm was casted during service. In addition,
post-service treatment records inform of a residual surgical
scar and of degenerative joint disease. However, it is
unclear whether any current right wrist/arm residuals are
related to the stab wound sustained during service in view of
purported post-service surgeries to the veteran's right arm
in 1979 and 1980; well after the veteran's separation from
active military service. Remand for a C&P examination in
accordance with McLendon is thus warranted. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In addition to the foregoing, it is noted that the veteran
receives medical care through the Mountain Home Veterans'
Affairs Medical Center (VAMC). VA is required to make
reasonable efforts to help a claimant obtain records relevant
to his claim, whether or not the records are in Federal
custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. §
3.159(c) (2007). In Bell v. Derwinski, 2 Vet. App. 611
(1992), the Court held that VA has constructive notice of VA
generated documents that could reasonably be expected to be
part of the record, and that such documents are thus
constructively part of the record before the Secretary and
the Board, even where they are not actually before the
adjudicating body. Accordingly, the RO should request all
relevant VA medical records pertaining to the veteran that
are dated from December 1, 2007, to the present.
Accordingly, the case is REMANDED for the following action:
1. Issue a statement of the case with
respect to the issue of an initial
compensable evaluation for floppy mitral
valve syndrome, to include notification of
the need to timely file a Substantive
Appeal to perfect his appeal on this issue.
The RO should allow the appellant the
requisite period of time for a response.
2. Request medical records from the
Mountain Home VAMC dating from January
2007. Also attempt to obtain any other
pertinent treatment records identified by
the veteran during the course of the
remand, provided that any necessary
authorization forms are completed. The
veteran should particularly be requested to
identify the treatment provider(s),
including hospitals, that rendered service
during his 1979 and 1980 right arm
surgeries, and the RO should ensure that
all extant records are obtained and
associated with the claims file. If no
further treatment records exist, the claims
file should be documented accordingly.
3. Schedule the veteran for an
examination by an appropriate specialist
with regard to his claim for service
connection for diabetes. The claims file
must be made available to, and reviewed
by, the examiner, and the examination
report must reflect that the claims file
was reviewed. All indicated tests must be
performed, and all findings reported in
detail. The examiner is specifically
requested to opine as to whether it is
less likely than not (less than a 50
percent probability) or at least as likely
as not (50 percent probability or greater)
that the veteran's diabetes was incurred
during active military service or is
related to service. A complete rationale
for this opinion must be included in the
examination report.
4. Schedule the veteran for an
examination by an appropriate specialist
with regard to his claim for service
connection for a right wrist/arm disorder.
The claims file must be made available to,
and reviewed by, the examiner, and the
examination report must reflect that the
claims file was reviewed. All indicated
tests must be performed, and all findings
reported in detail. The examiner should
set forth all disabilities (to include
scars, nerve damage, and any orthopedic
disabilities) found of the wrist and arm.
The examiner is specifically requested to
opine as to whether it is less likely than
not (less than a 50 percent probability)
or at least as likely as not (50 percent
probability or greater) that the current
right wrist/arm disorders found on the
examination were incurred in active
military service or are related to
service. A complete rationale for this
opinion must be included in the
examination report.
5. After any further development deemed
necessary, readjudicate the issues on
appeal. If any benefit sought remains
denied, the veteran and his representative
should be furnished a supplemental
statement of the case in accordance with 38
C.F.R. § 19.31(b)(1) and be given an
opportunity to respond. The case should
then be returned to the Board for appellate
review, if indicated.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs